From Medieval Europe to Contemporary Australia

Emotions in Legal Practices Conference: Some Thoughts

Engraving of Gilbert and Sullivan’s Trial by Jury. Courtesy of Wikimedia Commons.

By Hugh Dillon, Deputy State Coroner, New South Wales

Every day of the week, in trial courts all over the world, juries are told to ‘hearken to the evidence’, and to make their decisions in criminal trials ‘objectively’ and without allowing their emotions to sway them either in favour of or against the accused. Counsel often reiterates this mantra. If you were to ask a judge in a criminal court why we do this you’d get an interesting answer.

When a judge instructs a jury this way, what does he or she mean? Is it possible to exclude consideration of the emotions in legal decision-making, especially in hard-fought trials in which the emotions of interested parties will necessarily run high? If these questions were put to the judge, the answers may contradict the first answer. With these sorts of thoughts in mind I set off to a conference on ‘Emotions in Legal Practices: Historical and Modern Attitudes Compared’ at The University of Sydney in September this year.

I am a practising lawyer. I was a prosecutor for the Commonwealth DPP then became a magistrate and a coroner. I have a visiting fellowship at the University of New South Wales Law School, and am a member of the National Judicial College of Australia, but I am not really a scholar – rather, I am a legal practitioner who can teach at university level. Living in the law for a long time, I was unaware of the ARC Centre of Excellence for the History of the Emotions until I was invited to speak at the conference. And, while I was aware of books like Theodore Zeldin’s An Intimate History of Humanity (1994), I was unaware that there was so much scholarly interest in this subject, or that so much impressive work has been and is being done.

So it was fascinating to meet CHE’s Kimberley-Joy Knight and to be introduced to this field of scholarship, and very flattering to be invited to speak at the conference. My brief was to address how a judicial officer thinks about the practical aspects of recognising and managing emotions in the courtroom. Perhaps my ignorance helped me speak freshly and frankly – I was able to describe my experience and thinking in an academically naïve way.

As a novice in this field I was very struck not only by the range of topics covered, but also by the sophistication of the thinking – not surprisingly it was both intellectually and emotionally intelligent. I enjoyed every minute of this conference because of the provocation and stimulation it provided for participants.

Annalise Acorn (University of Alberta) delivered the opening lecture, and a provocative one it was. She challenged the tendency in the academy to eschew blame for crimes and harmful conduct in favour of an ethic of restorative justice or ‘detached forgiveness’. Given the tendency in Australian politics to play the ‘law-and-order’ card, and to blame first and worry about the facts later, I found this a rather challenging thesis. Annalise argued that for sentencing to make sense it has to have moral content, and that the moral content is articulated in censure and affective blame. I agree up to a point but I did wonder whether, if she had sat in the Charge Court at the Central Local Court and heard magistrates chastising guilty accused persons she would feel the same. This may be an example of where the academy and the courts need to converge more. For my part, there is a lot of blaming and punishing in our criminal justice systems, and insufficient rehabilitation or effort is put into addressing social conditions that result in crime. Justice re-investment is something we need more of, not less.

One of my pet subjects is the Holocaust. About 20 years ago I wrote some pieces for the Sydney Morning Herald and other publications on the great Holocaust denial case, Irving v Penguin Books and Lipstadt. Irving sued Penguin and Deborah Lipstadt for calling him a denier. Payam Akhavan’s discussion with Dirk Moses on issues concerning the jurisprudence of genocide struck loud chords for me. I had never seen either of them speak before and their very forthright (but courteous) discussion about this most sensitive of subjects was a highlight of the conference. Although I have read quite a lot in the area it made me want to go back to the books and think further.

There were many other very interesting talks but the final keynote address by Hila Keren of Southwestern University on ‘The Affective Role of Law in a Neoliberal Age’ seemed peculiarly apt coming as it did when the Trump machine was steaming along at breakneck speed. In America the ‘Alt-Right’ (or radical Right) has hijacked the conservative movement. The same phenomenon is to be seen in the UK in the Brexit campaign, in the reaction against Merkel’s admission of a million refugees into Germany, in the rise of neo-Nazism in the Austrian presidential election and even, to a much smaller extent, in the resurrection of One Nation and other fringe Right groups in Australia.

Hila emphasised that neoliberalism has resulted in far greater acceptance – even by the Left – of the atomisation of society and the subtlety of the process of turning the emotions, which evolution has fashioned to enable human societies to work, into individual assets for self-advancement. In fact, although she didn’t say it directly, she implied that the Left has been so undermined by neoliberalism that it is reduced to identity politics and not much more. There may be an element of hyperbole in her thinking, but it reminded me of the old metaphor about the slowly boiling frogs. Interestingly, the concerns of the Alt-Right will probably best be addressed by the adoption of the ideas of people like Thomas Piketty and Joseph Stiglitz who argue for a fairer sharing of the wealth of nations. This is because the Alt-Right are people who feel that they have been left out and left behind.

One note in a minor key was the fact that, apart from me, there were few practising lawyers in the audience, although some of the speakers, such as Maggie Hall, had practised in the past, and others, such as Jill Hunter, Sharyn Roach-Anleu and Kate Rossmanith, had worked closely with lawyers and judges. I hope that in years to come law schools will work consideration of the psychological aspects of the practice of law into their curricula.